| 1 | The Health & Families Council recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to medical negligence litigation; creating |
| 7 | ss. 458.3175 and 459.0066, F.S.; requiring the Board of |
| 8 | Medicine and the Board of Osteopathic Medicine, |
| 9 | respectively, to issue expert witness certificates to |
| 10 | certain licensed physicians under certain circumstances; |
| 11 | providing requirements for certification; providing a |
| 12 | limitation; requiring the boards to implement rules and |
| 13 | set fees; amending ss. 458.331 and 459.015, F.S.; |
| 14 | providing that certain fraudulent, deceptive, or |
| 15 | misleading expert witness testimony is grounds for |
| 16 | disciplinary action; providing penalties; amending s. |
| 17 | 766.102, F.S.; revising criteria for prevailing |
| 18 | professional standards of care for health care providers |
| 19 | in certain actions; providing that certain medical expert |
| 20 | testimony is not admissible unless the expert witness |
| 21 | meets certain requirements; amending s. 766.203, F.S.; |
| 22 | requiring claimants in medical negligence litigation to |
| 23 | conduct a presuit investigation of each named prospective |
| 24 | defendant; providing severability; providing an effective |
| 25 | date. |
| 26 |
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| 27 | Be It Enacted by the Legislature of the State of Florida: |
| 28 |
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| 29 | Section 1. Section 458.3175, Florida Statutes, is created |
| 30 | to read: |
| 31 | 458.3175 Expert witness certificate.-- |
| 32 | (1) Any physician who is licensed to practice allopathic |
| 33 | medicine in any other state or in Canada, whose license is |
| 34 | currently active and valid, who completes a registration form |
| 35 | prescribed by the board, who pays the application fee, and who |
| 36 | has not had a previous expert witness certificate revoked by the |
| 37 | board shall be issued a certificate to provide expert testimony. |
| 38 | For the purpose of this section, an expert witness certificate |
| 39 | shall be considered a license as defined in s. 456.001 and |
| 40 | treated as a license in any applicable disciplinary action |
| 41 | pursuant to this chapter. |
| 42 | (2) A physician possessing an expert witness certificate |
| 43 | may use the certificate solely to give a verified written |
| 44 | medical expert opinion as provided in s. 766.203 and to provide |
| 45 | expert testimony concerning the prevailing professional standard |
| 46 | of care in connection with any medical negligence litigation |
| 47 | pending in this state against a physician licensed under this |
| 48 | chapter or chapter 459. The possession of an expert witness |
| 49 | certificate alone does not entitle the physician to engage in |
| 50 | the practice of medicine as defined in s. 458.305. |
| 51 | (3) Every application for an expert witness certificate |
| 52 | shall be approved or denied within 5 business days after receipt |
| 53 | of a completed application. Any application for a certificate |
| 54 | that is not approved or denied within the required time period |
| 55 | is considered approved. Any applicant for an expert witness |
| 56 | certificate seeking to claim certification by default shall |
| 57 | notify the board, in writing, of the intent to rely on the |
| 58 | default certification provision of this subsection. |
| 59 | (4) All licensure fees other than the initial application |
| 60 | fee, including neurological injury compensation assessments, |
| 61 | shall be waived for those persons obtaining an expert witness |
| 62 | certificate but not otherwise allowed to practice medicine in |
| 63 | this state. |
| 64 | (5) The board shall adopt rules pursuant to ss. 120.536(1) |
| 65 | and 120.54 to implement this section, including rules setting |
| 66 | the amount of the expert witness certificate application fee. |
| 67 | The application fee for the expert witness certificate may not |
| 68 | exceed $50. An expert witness certificate shall expire 2 years |
| 69 | after the date of issuance. |
| 70 | Section 2. Paragraph (oo) is added to subsection (1) of |
| 71 | section 458.331, Florida Statutes, to read: |
| 72 | 458.331 Grounds for disciplinary action; action by the |
| 73 | board and department.-- |
| 74 | (1) The following acts constitute grounds for denial of a |
| 75 | license or disciplinary action, as specified in s. 456.072(2): |
| 76 | (oo) Providing misleading, deceptive, or fraudulent expert |
| 77 | witness testimony related to the practice of medicine. |
| 78 | Section 3. Section 459.0066, Florida Statutes, is created |
| 79 | to read: |
| 80 | 459.0066 Expert witness certificate.-- |
| 81 | (1) Any physician who is licensed to practice osteopathic |
| 82 | medicine in any other state or in Canada, whose license is |
| 83 | currently active and valid, who completes a registration form |
| 84 | prescribed by the board, who pays the application fee, and who |
| 85 | has not had a previous expert witness certificate revoked by the |
| 86 | board shall be issued a certificate to provide expert testimony. |
| 87 | For the purpose of this section, an expert witness certificate |
| 88 | shall be considered a license as defined in s. 456.001 and |
| 89 | treated as a license in any applicable disciplinary action |
| 90 | pursuant to this chapter. |
| 91 | (2) A physician possessing an expert witness certificate |
| 92 | may use the certificate solely to give a verified written |
| 93 | medical expert opinion as provided in s. 766.203 and to provide |
| 94 | expert testimony concerning the prevailing professional standard |
| 95 | of care in connection with any medical negligence litigation |
| 96 | pending in this state against a physician licensed under this |
| 97 | chapter or chapter 458. The possession of an expert witness |
| 98 | certificate alone does not entitle the physician to engage in |
| 99 | the practice of osteopathic medicine as defined in s. 459.003. |
| 100 | (3) Every application for an expert witness certificate |
| 101 | shall be approved or denied within 5 business days after receipt |
| 102 | of a completed application. Any application for a certificate |
| 103 | that is not approved or denied within the required time period |
| 104 | is considered approved. Any applicant for an expert witness |
| 105 | certificate seeking to claim certification by default shall |
| 106 | notify the board, in writing, of the intent to rely on the |
| 107 | default certification provision of this subsection. |
| 108 | (4) All licensure fees other than the initial application |
| 109 | fee, including neurological injury compensation assessments, |
| 110 | shall be waived for those persons obtaining an expert witness |
| 111 | certificate but not otherwise allowed to practice osteopathic |
| 112 | medicine in this state. |
| 113 | (5) The board shall adopt rules pursuant to ss. 120.536(1) |
| 114 | and 120.54 to implement this section, including rules setting |
| 115 | the amount of the expert witness certificate application fee. |
| 116 | The application fee for the expert witness certificate may not |
| 117 | exceed $50. An expert witness certificate shall expire 2 years |
| 118 | after the date of issuance. |
| 119 | Section 4. Paragraph (qq) is added to subsection (1) of |
| 120 | section 459.015, Florida Statutes, to read: |
| 121 | 459.015 Grounds for disciplinary action; action by the |
| 122 | board and department.-- |
| 123 | (1) The following acts constitute grounds for denial of a |
| 124 | license or disciplinary action, as specified in s. 456.072(2): |
| 125 | (qq) Providing misleading, deceptive, or fraudulent expert |
| 126 | witness testimony related to the practice of medicine. |
| 127 | Section 5. Subsection (1) of section 766.102, Florida |
| 128 | Statutes, is amended, subsection (12) of that section is |
| 129 | renumbered as subsection (13), and a new subsection (12) is |
| 130 | added to that section, to read: |
| 131 | 766.102 Medical negligence; standards of recovery; expert |
| 132 | witness.-- |
| 133 | (1) In any action for recovery of damages based on the |
| 134 | death or personal injury of any person in which it is alleged |
| 135 | that such death or injury resulted from the negligence of a |
| 136 | health care provider as defined in s. 766.202(4), the claimant |
| 137 | shall have the burden of proving by the greater weight of |
| 138 | evidence that the alleged actions of the health care provider |
| 139 | represented a breach of the prevailing professional standard of |
| 140 | care for that health care provider. The prevailing professional |
| 141 | standard of care for a given health care provider shall be that |
| 142 | level of care, skill, and treatment which, in light of all |
| 143 | relevant surrounding circumstances, is recognized as acceptable |
| 144 | and appropriate by reasonably prudent similar health care |
| 145 | providers trained, licensed, and practicing in the same area of |
| 146 | medical specialty. |
| 147 | (12) If the party against whom or on whose behalf the |
| 148 | expert testimony concerning the prevailing professional standard |
| 149 | of care is offered is a physician licensed under chapter 458 or |
| 150 | chapter 459, the expert witness must be licensed in this state |
| 151 | under chapter 458 or chapter 459 or possess an expert witness |
| 152 | certificate as provided in s. 458.3175 or s. 459.0066. Expert |
| 153 | testimony is not admissible unless the expert providing such |
| 154 | testimony is licensed by this state or possesses an expert |
| 155 | witness certificate. |
| 156 | Section 6. Subsection (2) of section 766.203, Florida |
| 157 | Statutes, is amended to read: |
| 158 | 766.203 Presuit investigation of medical negligence claims |
| 159 | and defenses by prospective parties.-- |
| 160 | (2) PRESUIT INVESTIGATION BY CLAIMANT.--Prior to issuing |
| 161 | notification of intent to initiate medical negligence litigation |
| 162 | pursuant to s. 766.106, the claimant shall conduct an |
| 163 | investigation to ascertain that there are reasonable grounds to |
| 164 | believe that: |
| 165 | (a) Each Any named prospective defendant in the litigation |
| 166 | was negligent in the care or treatment of the claimant; and |
| 167 | (b) Such negligence resulted in injury to the claimant. |
| 168 |
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| 169 | Corroboration of reasonable grounds to initiate medical |
| 170 | negligence litigation shall be provided by the claimant's |
| 171 | submission of a verified written medical expert opinion from a |
| 172 | medical expert as defined in s. 766.202(6), at the time the |
| 173 | notice of intent to initiate litigation is mailed, which |
| 174 | statement shall corroborate reasonable grounds to support the |
| 175 | claim of medical negligence. |
| 176 | Section 7. If any provision of this act or the application |
| 177 | thereof to any person or circumstance is held invalid, the |
| 178 | invalidity shall not affect other provisions or applications of |
| 179 | the act which can be given effect without the invalid provision |
| 180 | or application, and to this end the provisions of this act are |
| 181 | declared severable. |
| 182 | Section 8. This act shall take effect October 1, 2006. |